Abortion Policy in the Absence of Roe

Background

Changes to the makeup of the U.S. Supreme Court in 2018 raise the possibility that Roe v. Wade could be severely undermined—or even overturned—essentially leaving the legality of abortion to individual states. A reversal of Roe could establish a legal path for states’ pre-1973 abortion bans, as well as currently unenforced post-1973 bans, to take effect.

Many state lawmakers continue to consider and enact abortion bans that fly in the face of constitutional standards and Roe’s precedent in anticipation of an eventual lawsuit on such a ban coming before a Supreme Court hostile to abortion rights.

Some bans prohibit abortion under all or nearly all circumstances, a tactic widely viewed as an attempt to provoke a legal challenge to Roe. Several of this type of ban that were passed by states have been blocked by court orders and would require further court action to be enforced.

Other bans enacted after Roe are designed to be “triggered” and take effect automatically or by swift state action if Roe is overturned. Several states even have laws declaring the state’s intent to ban abortion to whatever extent is permitted by the U.S. Constitution, making their desire to halt abortion access in the state clear.

Meanwhile, policymakers in some states have approved laws to protect abortion rights without relying on the Roe decision. Most of these policies prohibit the state from interfering with the right to obtain an abortion before viability or when necessary to protect the life or health of the woman.

Highlights

19 states have laws that could be used to restrict the legal status of abortion.

9 states retain their unenforced, pre-Roe abortion bans.

8 states have post-Roe laws to ban all or nearly all abortions that would be triggered if Roe were overturned.

5 states have unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.

7 states have laws that express the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.

13 states have laws that protect the right to abortion.

2 state has codified the right to abortion throughout pregnancy without state interference.

11 states explicitly permit abortion prior to viability or when necessary to protect the life or health of the woman.

Abortion Policy in the Absence of Roe

State

Restricting the right to abortion

Protecting the right to abortion

Unenforced pre-Roe abortion ban

Post-Roe ban intended to take effect if Roe overturned

Unconstitutional, post-Roe restrictions that could take effect if Roe overturned

Expressed intent to limit abortion to maximum extent permitted

Throughout pregnancy

Prior to viability

Alabama

X†,‡

Arizona

X†

Arkansas

X

X

s

X

California

X

Connecticut

X

Delaware

X

Hawaii

X

Illinois

X

Iowa

q

Kansas

X

Kentucky

X

s

X

Louisiana

X

q

X

Maine

X

Maryland

X

Michigan

X†

Mississippi

X†,Ψ

X

s

Missouri

X

X

Nevada

X

New Mexico

XΩ

New York

X

North Dakota

X

q

X

Ohio

X

Oregon

X

Oklahoma

X†

Rhode Island

X

South Dakota

X

Tennessee

X

Texas

q

Utah

q

Vermont

X

Washington

X

West Virginia

X†

Wisconsin

X†

TOTAL

9

8

0

7

2

11

q Permanently enjoined by court order; law not in effect.s Temporarily enjoined by court order; law not in effect.† Law includes an exception to protect the life of the woman.‡ Law includes an exception to protect the health of the woman.Ψ Law includes an exception in cases of rape. Ω Law does not apply in cases when necessary to protect the life of the woman, when necessary to preserve the physical health or mental health of the woman, when the pregnancy is the result of rape or incest, or when the fetus may be born with defects.